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N.J.S.A. 40A:14-150, sustaining his removal from office. We affirm. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4010-07T14010-07T1 IN THE MATTER OF TOWNSHIP OF PISCATAWAY POLICE DEPARTMENT V. RICHARD WRIGHT. ______________________________________

Argued October 20, 2009 - Decided Before Judges Skillman and Fuentes. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MA-91-2007. Christopher A. Gray argued the cause for appellant Richard Wright (Alterman & Associates, attorneys; Mr. Gray, on the brief). Susan E. Volkert argued the cause for respondent Township of Piscataway (DeCotiis, Fitzpatrick, Cole & Wisler, attorneys; Ms. Volkert, of counsel and on the brief). PER CURIAM Richard Wright was formerly employed by the Township of Piscataway as a police officer. He was terminated from that position after he was found guilty of taking illegal substances and lying to investigators about his drug use. Wright now appeals from the judgment of the Law Division, entered after a de novo proceeding pursuant to N.J.S.A.

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40A:14-150, sustaining his removal from office. We affirm. We gather the following facts from the evidence presented during a departmental disciplinary hearing conducted before a hearing officer to adjudicate the charges against Wright. The Law Division relied upon these facts when it conducted its de novo review pursuant to N.J.S.A. 40A:14-150, which provides: Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court; provided, however, that in the case of an officer who is appealing removal from his office, employment or position for a complaint or charges, other than a complaint or charges relating to a criminal offense, the officer may, in lieu of serving a written notice seeking a review of that removal by the court, submit his appeal to arbitration pursuant to section 10 of P.L.2009, c.16 [N.J.S.A. 40A:14-209]. Such review shall be obtained by serving a written notice of an application therefor upon the officer or board whose action is to be reviewed within 10 days after written notice to the member or officer of the conviction. The officer or board shall transmit to the court a copy of the record of such conviction, and of the charge or charges for which the applicant was tried. The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper. Either party may supplement the record with additional testimony subject to the rules of evidence. The Law Division considered this application on the record developed before the hearing officer. After considering the argument of counsel, the court again found sufficient grounds to terminate Wright from his position as a police officer. In so doing, the court specifically rejected Wright's claim that the manner in which the Township charged him with "lying" violated his constitutional right to procedural due process. All of the evidence to support such a claim was known to the township at the time of the filing of the service of the first complaint [and] was testified to at the initial hearing. The testimony was not objected to, and the witness was subject to cross-examination by appellant's counsel. Indeed, appellant's counsel even questioned the witness about the ability to have referred such [an] additional charge against Appellant Wright and the absence thereof at the time of his testimony at the initial hearing. Thereafter the new charge was served, and the hearing continued on November 7th. No ruling was made, or request for a dismissal of the new charge, prior to the close of testimony on November 7th. Due process insofar as notice and right to be heard was provided, is satisfied by the record below. The evidence supporting the new charge was of no surprise in that it was in the discovery provided to counsel, was part and parcel of the evidence presentation supporting the initial charge during the first day of the hearing. The case entitled [Sabia v. City of Elizabeth, 132 N.J. Super. 6 (App. Div. 1974),] is illustrative or instructive. The Appellate Division there stated, "a departmental disciplinary [proceeding] is in no way a criminal or quasi-criminal proceeding and, consequently, respondents in such a proceeding do not come within the shield of the various constitutional guarantees accorded [persons] accused of a crime. Departmental disciplinary proceedings are civil in nature; requirements of due process are satisfied so long as proceedings are conducted with fundamental fairness, including adequate procedural safeguards." [Id. at 14.]
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Furthermore, the failure to insist upon a ruling with regard to a stated charge and the opportunity to present evidence in defense thereof in the event of an adverse ruling was present at the continued hearing on November 7th, but was foreclosed by appellant's failure to insist upon action. Appellant had the opportunity to crossexamine the witnesses and even argued against the necessity for additional testimony, which the township was prepared to offer by calling the appellant's wife as a witness at the first date of the hearing. Under such circumstances any defect is deemed waived and dismissal of the charge on procedur[al] grounds is denied. On appeal from the judgment of the Law Division, Wright reiterates the due process argument. He further argues that the court did not conduct the required de novo review and that the judgment therefrom was against the weight of the evidence, or otherwise arbitrary and capricious. We disagree and affirm substantially for the reasons expressed by the trial court in its March 17, 2008, decision. We add only the following brief comment. In support of his argument that the trial judge did not strictly adhere to her responsibility to conduct a de novo review of the evidence, Wright cites the following excerpt from her oral opinion: As to the substantive merits of the charges, based upon the record of the proceedings below and giving due deference to the hearing officer's credibility assessments, which I find no basis to deviate from, I find the following [has] been established by a preponderance of the evidence. [(Emphasis added).] This statement, cited in isolation, does appear to express a level of deference inconsistent with a de novo standard of review. However, such a conclusion here would not only be legally unwarranted but grossly unfair. When examined as a whole, the trial court's decision properly recognizes and applies the appropriate de novo standard of review. See State v. Kashi, 180 N.J. 45, 48 (2004). From its first statements framing the issues, throughout the decision, the trial court documented each factual finding with specific reference to the evidence adduced by the parties. The legal analysis that follows from these findings properly applies the relevant law and leads to an unassailable conclusion. The following excerpt from the trial court's oral opinion illustrates this point: From all of the credible evidence on this case I find that the township has met its burden of proof, which is admittedly lower than that required to sustain a conviction in a criminal matter. Insofar as this disciplinary proceeding is a civil matter and, therefore, the charge of illegal use of a drug, in this case a steroid, must be found to have been proven by a preponderance of the evidence, I cite the following findings of fact in this regard. Number one, nowhere on the medical form nor at any time during the process on June 11th did the appellant indicate the use [ ] by prescription or otherwise, of steroids. Secondly, at no time between the complaint notification and the taking of the urine sample on June 11th to the meeting with the appellant on July 19th was there any disclosure or request to modify the medication form or in any way disarm its accuracy by correction on appellant's part. Third, during his interview, when questioned after being told of the positive steroid use, appellant in addition to initially denying the claim stated [that] he did not know how he tested positive for steroids. Clearly at this juncture appellant knew how he tested positive because he thereafter produced a
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prescription for steroids, which on its face predated the blood test. And indeed, he believed his prescription was lawfully acquired and his use medically intended. There was no logical reason to withhold such information. Additionally, the testimony of Dr. Black established that [N]androlone, the steroid prescribed in and used in this case, has very few legitimate medical purposes, which are primarily for treatment of such wasting diseases as AIDS, cancer, or anemia, none of which appellant suffered from. And it would not be appropriate medication to treat sexual dysfunction, one of the complaints [appellant] was treated for by his local urologist with Cialis and which appellant offered up as an explanation perhaps for his positive test. Dr. Black's testimony also established that [N]androlone is . . . the most frequent anabolic steroid used in body building and other sports. Also, additionally, appellant did not use his ordinary resources to obtain the prescription [instead he used] a different method of payment and bypass[ed] his prescription plan. [W]hile it is not illegal to obtain a prescription drug through the Internet, [appellant] did so in this case in an effort to obtain said prescription for an otherwise non[-]medical purpose. Based upon these findings, it has been found that it is more likely than not that appellant's use of [N]androlone, a steroid, was for [a] non[-]medical purpose, knowledge of which can certainly be established through all of the circumstances surrounding his procurement and the circumstances surrounding his statements from the initial questioning and the filling out of the medicine form, as well as the statements made after the test results were known, notwithstanding the defense that he had an ostensibly valid prescription written by a licensed physician. It is the underlying circumstances surrounding the procurement of such a prescription coupled with the statements of appellant and the expert's testimony that forms the basis for the conclusion that the procurement was for a non[-]medical purpose, the appellant knew that. And, therefore, although valid on its face, such a use of steroids wasn't lawful. The charge is sustainable because of the burden of proof, the nature of the proceedings, and the fact that even in the absence of prosecution of a criminal offense or acquittal, there is no bar to a finding of guilt in a disciplinary hearing. [relying on Sabia v. City of Elizabeth, 132 N.J. Super. 6, 12 (App. Div. 1974).] We discern no reason to elaborate. Affirmed.

A Piscataway Police Department inventory sheet documenting the items Mrs. Wright gave to Ivone at this meeting also listed Testosterone cypionate, Oxandrolone, Cytomel and Tamoxifen. Although all of these medications can be grouped under the rubric of steroids, they also all have legitimate medical purposes. The document produced by Wright's counsel at the disciplinary hearing was actually a photocopy of a prescription dated February 15, 2007, bearing what purports to be Dr. Godfrey's signature and listing her office's address in Florida. The "prescription" also indicates Wright's name and date of birth. We express no opinion on whether a physician who is not located nor licensed to practice medicine in this State may "examine" a New Jersey resident over the internet, and thereafter, treat that person by issuing a prescription for a particular medication. (continued) (continued)
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16 A-4010-07T1 February 10, 2010 0x01 graphic

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